Karnataka High Court
Smt Mamata P Jain vs The State Of Karnataka on 4 June, 2024
Author: S G Pandit
Bench: S G Pandit
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WA No.100700 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO.100700 OF 2023 (LB-RES)
BETWEEN:
1. SMT., B.C. SHANTA,
W/O CHANNAKUMAR BADAMI @ CHANNAPPA BADAMI,
AGE: 68 YEARS, OCC: HOUSE WIFE,
R/O: STATION ROAD, NEAR SANGAM THEATER,
RANEBENNUR-581115, DIST: HAVERI.
2. B.C. VIJAYKUMAR,
S/O CHANNAKUMAR @ CHANNAPPA BADAMI,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: STATION ROAD, NEAR SANGAM THEATER,
RANEBENNUR-581115, DIST: HAVERI.
...APPELLANT
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. MAMATA, W/O PRUTVIRAJ JAIN,
AGE: 57 YEARS, OCC: HOUSEHOLD,
KM
SOMASHEKAR R/O: MAHAVEERA NIVASA, ASHOK CIRCLE,
Digitally signed by K M
SOMASHEKAR
Location: High Court of
RAILWAY STATION ROAD,
Karnataka Dharwad
Bench
Date: 2024.06.10
10:40:45 +0530
RANEBENNUR-581115, DIST: HAVERI.
2. TRUPTI, W/O PUNEET JAIN,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: JAIN TEMPLE CROSS,
BASAVANAGUDI, V.V.PURAM,
BENGALURU SOUTH-560004.
3. RUCHI, W/O PREETAM JAIN,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O: MAHAVEERA NIVASA,
ASHOK CIRCLE, RAILWAY STATION ROAD,
RANEBENNUR-581115, DIST: HAVERI.
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WA No.100700 of 2023
4. ROOPALI, W/O BHARAT JAIN,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: BALAJI COMMERCIAL, NEAR BUS-STAND,
ASHOK NAGAR, RANEBENNUR-581115, DIST: HAVERI.
5. CHANDA, W/O PREETAM JAIN,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: RANGANATH NAGAR, OM CIRCLE,
RANEBENNUR-581115, DIST: HAVERI.
6. VIMALA, W/O MOHANLAL BANDARI,
AGE: 58 YEARS, HOUSEHOLD,
R/O: ANGADI CHALA, RAILWAY STATION ROAD,
RANEBENNUR-581115, DIST: HAVERI.
7. SHASHIKALA, W/O BANAKUMAR BANDARI,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: RANGANATH NAGAR, OM CIRCLE,
RANEBENNUR-581115, DIST: HAVERI.
8. ROHIT S/O LALIT JAIN,
AGE: 31 YEARS, OCC: BUSINESS,
R/O: RAILWAY STATION ROAD, SANGAVICHALA,
RANEBENNUR-581115, DIST: HAVERI.
9. RUPESH, S/O THANAMAL JAIN,
AGE: 42 YEARS, OCC: BUSINESS,
R/O: GANDHI GALLI, RANEBENNUR-581115.
DIST: HAVERI.
10. RAKESH, S/O THANAMAL JAIN,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: RAILWAY STATION ROAD,
RANEBENNUR-581115, DIST: HAVERI.
11. RAMESH, S/O THANAMAL JAIN,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: DOMBARAGERI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
12. TUSHARA, D/O ARAVINDAKUMAR JAIN,
AGE: 37 YEARS, OCC: BUSINESS,
RANGANATH NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
13. AMITKUMAR B JAIN,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: BAIRU NIVAS, RAILWAY STATION ROAD,
RANEBENNUR, DIST: HAVERI-581115.
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WA No.100700 of 2023
14. MADANLAL G JAIN,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: GANDHI ELECTRICAL, ADB ROAD,
RANEBENNUR, DIST: HAVERI-581115.
15. MAHENDRA S GANDHI,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: 1ST FLOOR, NANDIHALLI CHAL,
RANGANATH NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
16. RAMESH J KOTHARI,
AGE: 53 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR KUNJA, SURANIGI ONI,
DODDAPETE, RANEBENNUR, DIST: HAVERI-581115.
17. JITENDRA S JAIN,
AGE: 31 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR KUNJA, SURANIGI ONI,
DODDAPETE, RANEBENNUR, DIST: HAVERI-581115.
18. BALACHANDRA K JAIN,
AGE: 52 YEARS, OCC: BUSINESS,
R/O: HARAPANAHALLI JAL,
RAILWAY STATION ROAD,
RANEBENNUR, DIST: HAVERI-581115.
19. AGARCHAND G JAIN,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: RISHAB GARNMENT, DODDAPETE,
RANEBENNUR, DIST: HAVERI-581115.
20. SACHIN J JAIN,
AGE: 32 YEARS, OCC: BUSINESS,
R/O: RANGANATH NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
21. THE STATE OF KARNATAKA,
REP BY ITS PRL. SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
M.S.BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU-560001.
22. THE CITY MUNICIPAL COUNCIL,
RANEBENNUR, R/BY ITS COMMISSIONER,
DIST: HAVERI-581115.
...RESPONDENT
(BY SRI. MRUTHYUNJAY TATA BANGI, FOR
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WA No.100700 of 2023
SRI. PRUTHVIRAJ P. HITTALAMANI, ADVOCATES FOR R1 TO R20;
SRI. MADANMOHAN M. KHANNUR, AGA FOR R21,
SRI. PRASHANTH S. HOSAMANI, ADVOCATE FOR R22)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, SET-ASIDE THE ORDER/JUDGMENT
DATED 10/11/2023, PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.NO.105755/2023 AND DISMISS THE WRIT PETITION, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra-Court appeal filed under Section 4 of the
Karnataka High Court Act, 1961 is directed against the order
dated 10.11.2023 passed in WP No.105755/2023, wherein this
Court issued the following directions:
i) Respondent No.2 is directed to issue a copy of
the survey conducted in respect of petitioner's
site and give an opportunity of hearing to the
petitioners to justify as to how there has been no
violation of sanction plan or building bye laws
and thereafter take steps to remove any
construction put-up in violation of the building
bye-laws or the sanction plan, if any, at the cost
of the petitioners.
ii) Respondent No.2 is also directed to conduct
necessary survey of the construction put-up by
respondents No.3 and 4 and if it is found that the
same is in violation of the building byelaws or
the sanction plan, initiate proper action against
them also.
2. The appellants herein were the respondents No.3
and 4 and respondents No.1 to 21 were the petitioners before
the learned Single Judge. For the sake of convenience, the
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parties would be referred to as they stood before the learned
Single Judge.
3. The petitioners were before this Court questioning
the endorsement dated 12.09.2023 bearing No.
NASARA/KAPA/VAHI/2022-23/399 (Annexure-L) and also
seeking a writ of mandamus directing respondent No.2 to
consider the objections dated 2.9.2023 vide Annexure-J and to
pass appropriate order after affording an opportunity of hearing
to the petitioners as per provisions of the Karnataka
Municipalities Act, 19641. Under Annexure-L, dated 12.09.2023,
respondent No.2/Municipal Council issued notice of inspection
to respondents No.3 and 4 to inspect as to whether
construction in CTS No.437/A/1 is in accordance with the
sanctioned plan. While disposing off the writ petition, learned
Single Judge directed the respondent No.2/Municipal Council to
issue a copy of survey conducted in respect of petitioners' site
and give an opportunity of hearing to the petitioners for their
say in the matter and also directed respondent No.2 to conduct
necessary survey of the construction put-up by respondents
No.3 and 4. Aggrieved by direction of this Court directing
'Act, 1964', for short
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respondent No.2 to conduct survey of the construction put-up
by respondents No.3 and 4, respondents No.3 and 4 are before
this Court in the present appeal.
4. Heard the learned counsel Sri. Dinesh M Kulkarni
for the appellants, learned counsel Sri.Mrutyunjaya Tata Bangi
for respondents No.1 to 20, learned AGA Sri. Madanmohan M
Khannur for respondent No.21, learned counsel Sri.Prashant S
Hosamani for respondent No.22 and perused the writ appeal
papers.
5. Sri. Dinesh M Kulkarni, learned counsel for the
appellants would submit that at the instance of
appellants/respondents No.3 and 4, impugned notice at
Annexure-L dated 12.09.2023 was issued to inspect as to
whether construction in CTS No.437/A/1 is in accordance with
the sanctioned plan. Learned counsel submits that respondents
No.3 and 4 have no objection with regard to direction issued to
respondent No.2 to issue a copy of survey conducted in respect
of petitioners' site, but the respondents No.3 and 4 are
aggrieved by the direction issued to respondent No.2 to
conduct survey of the construction put-up by respondents
Nos.3 and 4. Learned counsel would further submit that the
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said direction is unwarranted and no material whatsoever is
placed on record so as to say that construction put-up by
respondents No.3 and 4 is in violation of sanctioned plan and
building byelaws. Moreover, no complaint is received or made
available before the Court to issue such direction. Further,
learned counsel contends that direction issued by the learned
Single Judge is beyond the scope of subject matter of the writ
petition. Thus, he prays for setting aside the direction issued
to respondent No.2 to conduct survey of the construction put-
up by respondents No.3 and 4.
6. Per contra, learned counsel for the respondents
would submit that while conducting survey of the petitioners'
site, it would be necessary to conduct survey of the
neighbouring properties. It is submitted that unless
neighbouring properties are surveyed, it would not possible to
arrive to proper conclusion. It is further submitted that if the
construction put-up by respondents No.3 and 4 is in accordance
with the sanctioned plan and bye-laws, there need not be any
apprehension. Thus, prays for dismissal of the appeal.
7. Having heard the learned counsel for the parties
and on perusal of the writ appeal papers, we are of the
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considered view that respondents No.3 and 4, appellants
herein, are not aggrieved persons against the impugned order
passed by the learned Single Judge. Learned Single Judge
while disposing off the writ petition directed respondent No.2 to
issue a copy of the survey conducted in respect of the
petitioners' site and to afford an opportunity of hearing to the
petitioners and also directed respondent No.2 to conduct
necessary survey of the construction put-up by respondents
No.3 and 4. If the construction put-up by respondents No.3
and 4 is in accordance with the sanctioned plan and byelaws,
they need not have any apprehension. Further, it is to be
noted that if the authorities find that the construction put-up by
respondents No.3 and 4 is in violation of the sanctioned plan
and byelaws, definitely the authorities would have to proceed
with necessary action against them under the provisions of the
Act, 1964, that too only after providing an opportunity of
hearing to them. In any circumstance, appellants/respondents
No.3 and 4 would get an opportunity to have their say in the
matter. It is true that there is no material whatsoever against
respondents No.3 and 4 to say that their construction is
contrary to the sanctioned plan. However, this Court has not
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come to a conclusion that construction put-up by respondents
No.3 and 4 is not in accordance with sanctioned plan. To find
out as to whether construction put-up by respondents No.3 and
4 is not in conformity with the sanctioned plan and even though
there is no material or complaint against the respondents No.3
and 4, this Court in exercise of power under Article 226 of the
Constitution of India would have jurisdiction to issue such
direction. Thus, we do not find any merit in the appeal and
accordingly, writ appeal stands rejected. However, respondent
No.2/Municipal Council shall complete the survey process as
directed by the learned Single Judge within three months from
today.
Pending applications, if any, are disposed off as not
surviving for consideration.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
CT:VP
